Are you or your ex considering relocation after or during a divorce? Some of the most challenging parenting disputes take place when one parent wants to relocate with a child to a new place, thereby hindering the child’s relationship with the other parent. The amendments to the Divorce Act contain new provisions that address these issues.
What is Relocation?
Under the latest provisions of the amended Divorce Act, “relocation” is defined as— a move that is expected to have a substantial impact on a child’s relationship with someone who has (or is in the process of applying for) parenting time, decision-making responsibility or contact.
Like other custody and access disputes, the best interest of the child test applies.
Gordon v. Goertz
The leading case in this area is Gordon v. Goertz, which arose as an application to alter an existing access plan by a custodial parent seeking to relocate outside of Canada. From the facts, the Supreme Court of Canada put forward a two-part test, for subsequent Courts to apply, in similar situations.
First, the Court must be satisfied that the relocation constitutes a substantial change in the circumstances for the child. For example, if the relocating parent wants to move from Toronto to Milton and the other parent has parenting time every two weekends, the relocation may not amount to a substantial change of circumstance for the child because the current parenting arrangements can resume. However, if both parents have equal parenting time, and one parent wants to move from Toronto to Ireland with the child, this will evidently create a material change of circumstance for the child.
If this part of the test is met, the Court considers the following factors:
- The current custody and access arrangements and the relationship between the child and each parent;
- The desirability of maximizing contact between the child and both parents;
- The views of the child;
- The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; and
- The impact of the potential disruption on the child of either a change in custody or removal from their current environment.
Amendments to the Divorce Act
The March 2021, amendments to the Divorce Act now provide a codified structure for relocation cases, which signifies a departure from the present legislation and jurisprudence.
Under the amendments, ss.16.9(1)-(2) imposes a duty on a parent to notify the other parent of a projected move— which includes providing specific details of the move and a proposal for parenting time, decision-making, and contact, should the move be permitted. This notice must be provided at least 60 days before the projected move and must include details of the new address and contact information.
Also check: Served With Divorce Papers? What To Do Next
When can you relocate with the Child?
A parent can only relocate with the child if either:
- The other parent does not object to the move and there is no order in place precluding a move; or
- The parent obtains a court order permitting the move.
If the child resides with both parents equally, and there is an order in place, arbitral award, or agreement for parenting, then the burden of proof lies with the parent wishing to relocate. However, if the child resides predominantly with the parent insinuating the relocation, the burden of proof will then lie with the parent opposing the relocation.
If there is no parenting agreement or order in place, the burden of proof then lies on both parties to demonstrate whether the relocation of the child is in their best interest.
An important amendment to the Divorce Act can be found in section 16.92(2), where courts are now prohibited from considering whether the parent seeking to relocate would proceed with the relocation or not relocate if they were not permitted to bring the child.
At Nussbaum Law, we understand the legal ramifications of relocation under the Divorce Act. We are committed to assisting our clients. If you have concerns about relocation or other aspects of divorce, please contact one of our experienced lawyers for assistance.